With this year’s big affirmative action case, Fisher v. University of Texas, being one of the highlights of the Supreme Court’s current term, it is worth circling back to CRCL’s previous treatment of the issue. As one of the most visible (and controversial) civil rights issues of the last half century, affirmative action has had its fair share of space in CRCL. For this blog post, I’d like to revisit two articles published in the wake of the Fifth Circuit’s 1996 decision in Hopwood v. Texas: Goodwin Liu’s “Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test” (33 Harv. C.R.-C.L. L. Rev. 381 (1998)), and a student Note by Danielle Holley and Delia Spencer, “The Texas Ten Percent Plan” (34 Harv. C.R.-C.L. L. Rev. 245 (1999)). Because the issue in Fisher centers on the relationship between the Texas Top Ten Percent Plan and the use of race as a factor in the remaining discretionary admissions at the University of Texas at Austin, it is worth reflecting on the moment in the 1990s when Hopwood killed UT’s earlier attempt to use affirmative action to remedy a history of segregation.

Holley and Spencer provide a valuable analysis of the context in which Texas created the Ten Percent Plan. In the 1970s, the Office of Civil Rights in the Department of Health, Education, and Welfare found that the public university system in Texas was in violation of Title VI of the 1964 Civil Rights Act. The first attempt by the state of Texas to remedy the situation was rejected by the Assistant Secretary of Education, a lawyer by the name of Clarence Thomas, because the goals for black and Hispanic enrollment in graduate education was “insufficient to meet Texas’ commitment to enroll those minority students in proportion to the representation among graduates of the state’s undergraduate institutions.” In 1983, with numerical guidelines in place for graduate education, the Texas Plan went into effect, and was revised in 1989 and 1994 – when Cheryl Hopwood sued the University of Texas at Austin Law School for its use of race in admissions.

The result of Hopwood was the temporary end of race as a factor in admissions. The Fifth Circuit held that diversity was not a compelling government interest for using racial classifications in admissions (rejecting Justice Powell’s arguments in Bakke), and ruled that any remedial justification for affirmative action had to be based in discriminatory actions by the UT-Austin Law School (which, of course, had led to the Sweatt decision in 1950).

In response, the state legislature passed the Top Ten Percent Plan, which achieved diversity in higher education through the fact that the state’s high schools remained largely segregated. The Ten Percent Plan was based on academic achievement as measured through high school grades, and provided a way to select academically-driven students without needing to rely on standardized test scores – shifting the definition of merit in a way that would encourage applications to UT by students from disadvantaged schools. Because it could achieve diversity in admissions through a facially race-neutral method, the Plan gained the support of Governor George W. Bush.

Holley and Spencer also observed that the Ten Percent Plan could have an even more powerful effect: by bringing together the top students from the state’s high schools, the Plan could lay the foundations for a more thorough assessment of the opportunities available in the state’s high schools, and could generate the political will to create greater equality of opportunity at the high school level. Administrators at the University of Texas were concerned about how prepared students from poor schools would be, and hoped that the enactment of the Ten Percent Plan would lead to an effort to equalize funding and achievement among the state’s high schools. The ironic significance of the Plan for the use of race in discretionary admissions today is discussed below.

Liu’s article instead focused on the fate of the diversity rationale after Hopwood, which would be explicitly endorsed in Justice O’Connor’s majority opinion in Grutter in 2003. Liu found early invocations of the diversity interest in the 1950 cases, Sweatt (“Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.”) and McLaurin (“Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.”). Of course, these cases focused on how black students could learn from their white colleagues, while Liu sought a robust constitutional justification for a broader concept of diversity in education. Ultimately, he argued that the diversity rationale was as robust a compelling government interest as the remedial rationale.

What can these articles tell us about the issues at stake in Fisher? There seem to be two general lessons. First is the ironic success of the Top Ten Percent Plan, which has led to diverse student bodies despite being such a blunt instrument and despite relying on the de facto segregation of Texas schools. While UT reinstituted consideration of race as one factor in the admission of students outside of the Ten Percent Plan after Grutter, Fisher has challenged the necessity of the use of race in this context, given the number of minority students admitted through the Plan. In one sense, the Plan has been so successful (due, at least in part, to the continued segregation among high schools) that may have swamped the University’s ability to also engage in a more holistic and nuanced assessment of the remaining candidates for admission.

The second issue is the need to reassert the importance of the diversity rationale. Less than a decade after Grutter upheld diversity as a compelling government interest, the diversity rationale is under attack once again. As Liu noted in the wake of Hopwood, the same reasons that support the remedial rationale also continue to support the diversity rationale. I would go a step farther and suggest that the remedial and diversity rationales are useful complements: the remedial rationale points backward to our sad history of discrimination (including, in the case of Fisher, at the University of Texas itself, which spawned Sweatt, one of the seminal cases in desegregation), while the diversity rationale points forward, to the eventual goal of a society of racial equality that continues to animate affirmative action programs.

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Andrew is the Executive Editor for Online Content at CRCL. He is interested in both criminal justice and the effects of technological change on privacy and civil liberties. Andrew is active in the Harvard Prison Legal Assistance Project, and has interned at the UN Assistance to the Khmer Rouge Trials. Prior to law school he taught in the Prison University Project in San Quentin, CA, and received a Ph.D. in history from UC Berkeley. He is a 2L.